[2025] EWHC 2485 (Ch)

But, if I were wrong about service on Iftikhar, and the court somehow did have jurisdiction over him, that does not mean that the court is obliged to exercise it. The court may decline to exercise jurisdiction on the basis that England is not the appropriate forum for the dispute (known as “forum non conveniens”). In Vauxhall Motors Limited v Denso Automotive UK Ltd [2025] EWHC 213 (Ch), Bacon J summarised the principles of this doctrine. I reproduce below only the paragraphs of her summary relevant to this case:

“49.

The forum conveniens principles set out in the well-known judgment of Lord Goff in Spiliada Maritime Corp v Cansulex (The Spiliada) [1987] AC 460 apply both to the question of whether to permit service outside the jurisdiction in relation to service-out defendants, and whether to decline jurisdiction in relation to service-in defendants. Those principles have been the subject of considerable further commentary in more recent case-law. For present purposes the relevant principles can be summarised as follows:

i)

In service-in cases, the burden is on the defendant to show that England and Wales is not the natural or appropriate forum for the trial, and that there is another available forum which is clearly or distinctly more appropriate, or which in other words is the "natural forum" for the trial of the action. If the court is satisfied that there is another available forum which is prima facie the appropriate forum, the burden shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country: Spiliada pp. 476–478.

ii)

In service-out cases, the burden is on the claimant to show that England and Wales is clearly or distinctly the most appropriate forum. It is not sufficient to show that it is one of several equally suitable available fora: Gulfvin Investment v Tahrir Petrochemicals [2022] EWHC 1040 (Comm), [2022] 4 WLR 66, §§18–22.

iii)

Where there are multiple defendants, some of which have been served without the need for permission and some with permission, the court is in essence looking for a single jurisdiction in which the claims against all the defendants may, as a whole, most suitably be tried: Lungowe v Vedanta Resources [2019] UKSC 20, [2020] AC 1045, §68; Mercedes-Benz v Continental Teves [2023] EWHC 1143 (Comm), [2023] 5 CMLR 21, §22.

iv)

In seeking to establish the appropriate forum for the litigation, the court should consider the forum with which the action has ‘the most real and substantial connection’: Spiliada p. 478; Lungowe §66.

v)

Relevant factors will include the location of witnesses and documents, and their language, consideration of the places where the parties reside or carry on business, the place where the wrongful act or omission occurred, and the place where the harm occurred: Spiliada p. 478; Lungowe §66.

vi)

It is generally preferable, other things being equal, that a case should be tried in the country whose law applies. That factor carries particular force if issues of law are likely to be important and there is evidence of relevant differences in the legal principles between the different competing fora: VTB Capital v Nutritek, [2013] UKSC 5, §46.

[ … ]

ix)

In considering whether there are special circumstances requiring a stay not to be granted notwithstanding the conclusion that another forum is prima facie more appropriate, one factor may be cogent evidence establishing that the claimant will not obtain justice in the foreign jurisdiction: Spiliada p. 478.

x)

Procedural differences such as differences in disclosure rules in different jurisdictions are, however, generally not reasons making it unjust to stay proceedings in this jurisdiction: Spiliada pp. 482–483.

xi)

If a claimant would be out of time in the foreign jurisdiction, and did not act unreasonably by failing to issue protective proceedings in that forum, that does not render the foreign jurisdiction "unavailable", but may be a reason why it would be unjust to stay the domestic proceedings. It will be relevant to consider the claimant's awareness of the time-bar and the explanation for its failure to issue protective proceedings: see Spiliada pp. 483–484; Citi-March v Neptune Orient Lines [1996] 1 WLR 1367, p. 1374. If the claimant has acted reasonably in commencing proceedings in England and Wales, and in allowing time to expire in the relevant foreign jurisdiction, a stay (or set-aside of service) should only be granted on terms the defendant waives the time-bar in the foreign jurisdiction, assuming it can do so: Baghlaf Al Safer v Pakistan National Shipping [1998] CLC 716, p. 727; and see also Spiliada p. 484.”

Because this doctrine arises only if the court has jurisdiction over Iftikhar, the factual hypothesis on which I discuss it must be (contrary to my holding) that he was validly served in 2021. In that case, he would need an extension of time in which to make a jurisdiction challenge and in which to acknowledge service. This would also require relief from sanction under CPR rule 3.9. That rule relevantly provides:

“(1)

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a)

for litigation to be conducted efficiently and at proportionate cost; and

(b)

to enforce compliance with rules, practice directions and orders.”

In Denton v TH White Ltd [2014] 1 WLR 3926, the Court of Appeal laid down a three-stage test for granting relief from sanction:

“24.

… A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

Looking at the first stage, the delay is on any view lengthy and therefore serious. However, in my judgment it is not significant, because Vaqar has not sought to advance the proceedings in that time. For his own reasons, he has concentrated on defending the possession proceedings, and only now that they have failed has he turned back to the Partnership Proceedings. The failure to acknowledge service has had no impact. At the second stage, the reason for the failure to acknowledge service is because Iftikhar did not know, until December 2024, that Vaqar claimed to have served him in 2021. Once Iftikhar knew of this, he promptly filed an acknowledgement of service. Vaqar did not inform Iftikhar of his efforts to serve him in Pakistan, and therefore has only himself to blame for what has happened. At the third stage, and consideration of all the surrounding circumstances, it is clear to me that relief from sanction should be granted.

I therefore turn now to the application of the doctrine of forum non conveniens to the facts of this case. The important issues in the 2019 English Partnership Claim are first of all whether or not there was a partnership between him and members of his family, and if there were, their respective rights in relation to partnership assets. Pakistan is or was the centre of the alleged partnership, as stated by Vaqar himself in proceedings issued there in 2019. If there were a partnership, it would probably be governed by Pakistani law. Iftikhar and his siblings apart from Vaqar are resident in Pakistan. There are already related proceedings on foot in Pakistan. A partner has a claim to a share in the residue of partnership assets on a winding up: Popat v Shonchhatra [1997] 1 WLR 1367, 1372, CA. A claim as a member of a partnership does not give rise to a claim to a particular partnership asset or a share in a particular partnership asset, such as the flat in issue in the Possession Proceedings (even had it been proved to be a partnership asset).

In the circumstances, it is clear to me that England, although a possible forum, is not “clearly or distinctly the most appropriate forum”. The jurisdiction with which this partnership claim has “the most real and substantial connection” is Pakistan. If the partnership were established, the claim would have to take account of partnership property situated in Pakistan. Most of the partnership records would no doubt be found there. The most appropriate forum is obviously Pakistan. There is no evidence demonstrating special circumstances such as an inability to obtain justice in Pakistan. Indeed, Vaqar has himself already chosen to litigate there. Nor is there any evidence of any injustice that might be caused by the imposition of time bars or other procedural problems. In my judgment, if the English court did have jurisdiction over Iftikhar in relation to the 2019 English Partnership Claim, it would nevertheless be inappropriate to exercise it, and therefore the court should stay the claim.